No Spanish Jurisdiction over Medieval Bolognese Foundation

The author of this post is  Javier Carrascosa González who is a Professor of Private International Law at the University of Murcia.

The Spanish Supreme Court judgment of 22 June 2026 (ECLI:ES:TS:2026:2768) deals with a case concerning the validity of a decision taken by a pontifical foundation established under canon law (the law of the Catholic Church) in Bologna, Italy, and having also legal personality under Italian law (the Real Colegio de España en Bolonia). An extensive commentary on this decision, written by Alfonso-Luis Calvo Caravaca and Javier Carrascosa González will be published in the journal “Cuadernos de Derecho Transnacional” in the next few months.

Background

The dispute was as follows: a member of the Board of Trustees of that foundation was removed from the Board by the Board itself and subsequently appealed to the Spanish courts to have that decision set aside. The subject matter of the proceedings was, therefore, the ‘validity of the decision’ taken by the foundation.

The canonical foundation in question (Reale Collegio Maggiore di San Clemente degli Spagnoli or Real Colegio de España en Bolonia) was established in 1364 in Bologna, a city situated, at that time, in a country that no longer exists: the Papal States. The foundation was established by a will made in Ancona in 1364 by Cardinal Don Gil de Albornoz, Archbishop of Toledo and Cardinal Primate of Spain, born in Carrascosa del Campo, Cuenca, Spain. The Real Colegio has continued its activities from 1369 to the present day, as it remains in operation. It is therefore the oldest student residence in the world that is still active.

The Controversy

The legal dispute centred, fundamentally, on determining the member State in which the foundation was seated. According to Article 24 Brussels I bis Regulation (1215/2012), “[T]he following courts of a Member State shall have exclusive jurisdiction, regardless of the domicile of the parties: (…) (2) in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law“.

The expert in private international law is perplexed and dumbfounded, as he finds himself faced with a nest of issues relating to the most exotic aspects of this sector of law.

Firstly, this case concerns a legal person, a foundation established under non-State law, that is to say, under the law of the Catholic Church, canon law. It is necessary to specify in which member State has the foundation its “seat” within the meaning of Article 24(2) Brussels I bis Regulation. This is the core of the dispute, which is not a small thing.

Secondly, there is a conflit mobile in the field of jurisdiction, as the foundation was established in the territory of a country that no longer exists (the Papal States). At present, the foundation is established in a city, Bologna, which is now integrated, needless to say, in the territory of the Italian Republic.

The Supreme’s Court Decision

The reasoning followed by the court was as follows.

Firstly, in order to determine whether the Spanish courts have international jurisdiction to hear the dispute in question, the Supreme Court of Spain points out that only the Brussels I bis Regulation applies. The Spanish domestic rules on international jurisdiction are not applicable at all.

Secondly, the Supreme Court ruled that the dispute transparently fell into the scope of application of Article 24(2) Brussels I bis Regulation for two different reasons. On the one hand, the concept of ‘companies and other legal persons’ used in that provision is a “concept specific to European Union law”, a “concept specific to the Brussels I bis Regulation”, as it was declared by the Court of Justice in Somafer, C-33/78. It is clear that the Real Colegio is a private foundation. As such, it must be considered as a private law entity for the purposes of Article 24(2). On the second hand, the validity of the decisions of the organs of a legal person is a question expressly covered by Article 24(2), as one may see in the Court of Justice’s judgment in E.ON, C-560/16 paras. 42-45).

Thirdly, the Supreme Court emphasized that the ‘seat of the legal person’ for the purposes of Article 24(2) must be determined in accordance with “its” rules of private international law, i.e. Spanish law. The court correctly points out that Article 24(2) follows a radical unilateral approach, as only Spanish law can decide whether a foundation has its seat in Spain or not.

Fourthly, according to Article 6(1) of the Spanish Law 50/2002 of 26 December on foundations, ‘[f]oundations which mainly carry out their activities within the Spanish territory must be domiciled in Spain’. It is more than clear that the Real Colegio was founded and established in Bologna (now Italy), pursuant to Canon Law and not under Spanish law. It is well known that the foundation carries out its activities on the Italian territory, not in Spain. It is in Bologna, Italy, where the students receive the benefits of their scholarships. It is in Bologna where they are enrolled, through the Real Colegio, at the University of Bologna. Finally, it is in Bologna where the Real Colegio accommodates and hosts the students for several years, providing them with academic, cultural and material support until they obtain their doctorate (PhD diploma) at that University. Therefore, as the foundation does not carry out ‘the main part of its activities’ on the Spanish territory but in Italy, the foundation is under no obligation to be entered in the Spanish register of foundations, nor to comply with Spanish law on foundations, nor to establish its registered office or seat in Spain. On top of that, the foundation’s statutes declare that the foundation’s headquarters are in Bologna, Italy, as it could not be otherwise.

Hence, the Spanish Supreme Court held that the Spanish courts lacked international jurisdiction to decide the matter, as it fell within the exclusive jurisdiction of the Italian courts, and declared itself, of its own motion, to have no jurisdiction to decide the controversy. All in accordance with Article 27 of the Brussels I bis Regulation.

Comment

The Supreme Court’s judgment of 22 June 2026 demonstrates the Court’s commitment to European integration through the European private international law legal instruments.

The unilateral solution set out in Article 24(2) Brussels I bis Regulation, as a result of the so called “spell of sovereignty”, clearly entails serious dilemmas. A negative conflict of seats of legal persons may arise. Some legal persons may not have their seat in any Member State according to the rules of private international law of the Member States. A positive conflict of seats could also arise. Some legal persons may have their seat in different Member States at the same time according to the rules of private international law of those member States. In this event, Article 31(1) of the Brussels I bis Regulation provides that “any court other than the court first seised shall decline jurisdiction in favour of that court“.

Nevertheless, the most delicate problem raised by Article 24(2) is the fact that, once the court has ascertained that, applying its rules of private international law, a foundation has not its seat in the Member State whose court is hearing the case, it has to verify that the foundation has its seat in another member State in accordance with the rules of that other member State. This is pure unilateralism in the field of international jurisdiction. Domestic legal systems of the member States differ significantly when it comes to determining the seat of a legal person. Some require it to be established in the country of the legal person’s registered office or statutory seat. Others take into account the State where the legal person’s actual place of business or place of management is located (forum gestae administrationis). Others consider the State where the legal person carries out its main economic operations or principal place of business, and so on. In the case of Spain, Spanish legal entities, or more precisely, those governed by Spanish company law, are required to have their seat in Spain. The Spanish Supreme court should have been more unhindered and accurate when it comes to determining the seat of the Real Colegio in Italy. Notwithstanding the judgment of the Spanish Supreme Court is an excellent example of sound private international law, the court is not very clear with regard to this question, but perfection is not for this world. This judgment is still a brilliant illustration of how exclusive jurisdiction must operate within the framework of Article 24(2) of the Brussels I bis Regulation.